This two-part blog explores how International Humanitarian Law (IHL) and International Human Rights Law (IHRL) complement each other in governing detention and internment of civilians during armed conflicts. This first part analyzes the Inter-American framework for protecting persons deprived of liberty, while the second part will explore the synergies between IHL and IHRL regarding detention.

The IHL framework for civilian detention: Scope and limitations

While IHL allows States to restrict a civilian’s liberty or to put them under internment, provided that specific grounds and procedures are verified, the scope and detail of these provisions vary depending on the type of conflict. In general, internment is considered a form of non-criminal deprivation of liberty based on security reasons.

IHL contains several provisions regulating the internment of civilians in international armed conflicts (IAC) under the IV Geneva Convention and Additional Protocol I. Non-international armed conflicts (NIAC) have fewer provisions, as seen in Common Article 3 and Additional Protocol II. This has prompted discussions about applying IHRL to complement the protection of persons deprived of liberty in NIAC (see, e.g., the Commentaries to Common Article 3).

The right to personal liberty and the notion of “deprivation of liberty” under the Inter-American Human Rights System

Article 7 of the American Convention on Human Rights enshrines the right to personal liberty and prohibits arbitrary arrests or imprisonment.  The American Declaration of the Rights and Duties of Man contains the right to liberty in Article I and protection from arbitrary arrest in Article XXV.  The Inter-American Commission on Human Rights (IACHR) has adopted the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, a soft law document that expands on the rights of persons deprived of liberty and the duties of States towards them. Deprivation of liberty is defined to include “any form of detention, imprisonment, institutionalization, or custody of a person in a public or private institution which that person is not permitted to leave at will, by order of or under de facto control of a judicial, administrative or any other authority, for reasons of humanitarian assistance, treatment, guardianship, protection, or because of crimes or legal offense”.  This broad definition means provisions regarding persons deprived of liberty can be applied to people detained or interned during an armed conflict.

The Inter-American Court of Human Rights (IACtHR) has established criteria to determine whether deprivation of liberty is arbitrary. In the Case of Yvon Neptune vs. Haiti, the IACtHR stated that such restrictions must follow four requirements: (i) a legitimate purpose, (ii) appropriateness to achieve the objective, (iii) necessity, and (iv) proportionality. The American Convention does not contain a list of legitimate motives to deprive a person of their liberty (Case of Vélez Loor vs. Panama); therefore, it is key to address the question of arbitrariness through an analysis of the aforementioned requirements. In the Case of Pacheco Teruel et al. vs. Honduras, the IACtHR remarked that the State must prove, on a case-by-case basis, that sufficient motives exist, and that mere suspicion is not sufficient. To guarantee that detention is not arbitrary, the Inter-American System establishes two obligations: informing detention reasons, and promptly bringing detainees before a judge or authorized officer (Case of Gómez-Paquiyauri Brothers vs. Peru)

Both the American Convention and the American Declaration establish rights and guarantees for detained persons. Regarding the right to be informed about the reasons for the detention, the IACtHR has specified two guarantees: (i) information about factual and legal grounds when detention takes place, using simple language; and (ii) written notification of criminal charges (Case of J vs. Peru). With respect to the right to be brought promptly before a judge or authorized officer, the IACtHR has affirmed that the detained person shall attend in person and the judge must personally listen to them (Case of Espinoza Gonzáles vs. Peru).

Regarding collective detention, the IACtHR has stated that a collective arrest is allowed only when the causes of arrest are individualized for each person (Case of Servellón-García et al. vs. Honduras)

Situations of emergency, suspension of rights, and non-derogable rights

Article 27 of the American Convention allows States to suspend their obligations “in time of war, public danger, or other emergency that threatens the independence or security of a State Party”; however, suspension must be temporary, proportional, non-discriminatory, and consistent with international law.

Additionally, the American Convention establishes rights that cannot be suspended or derogated. Although personal liberty is not listed, it refers to essential judicial guarantees, which are key when addressing the rights of people deprived of liberty.

The IACtHR in its Advisory Opinion on Judicial Guarantees in States of Emergency identified that the rights established in Article 7.6 (personal liberty), Article 8 (fair trial), and Article 25.1 (judicial protection) as non-derogable. States must guarantee access to competent courts for detention review; competent, independent, and impartial tribunals; presumption of innocence; charge notification; defense rights; and effective recourse, among others. Habeas corpus is essential for the protection of persons deprived of liberty (Advisory Opinion on Habeas Corpus in Emergency Situations). The IACtHR has affirmed that the prohibition of arbitrary deprivation of liberty cannot be suspended (Case of Rodríguez Vera et al. vs. Colombia) and has reiterated that no absolute suspension of the right to a judicial review is allowed (Case of J vs. Peru; Case of Espinoza Gonzáles vs. Peru).

The IACHR has expanded on personal liberty and non-derogable guarantees in its thematic reports. In the “Report on Terrorism and Human Rights” and “Towards the closure of Guantanamo”, the IACHR stated that, in a situation of emergency, a pretrial or administrative detention can be prolonged only for a strictly necessary period and must comply with essential guarantees, including legal grounds, information, legal counsel, and judicial review.

Having established this framework, the second part will examine how the Inter-American Human Rights System addresses both IHL and IHRL and explore the specific synergies between these frameworks regarding detention.